By JORDAN CARLEO-EVANGELIST Staff writer

Published 12:45 am, Wednesday, August 24, 2011

ALBANY -- The city was drawn into the statewide debate on a controversial natural gas drilling technique Tuesday night when lawmakers heard more than three hours of testimony on whether to ban hydraulic fracturing within city limits and bar its byproducts from the city-owned Rapp Road landfill.

Ultimately, deadlocked and unable to reach agreement, the three members of the Common Council's General Services Committee present voted to send to the legislation to the full council without any recommendation at all.

The move sets the stage for votes that will, in many respects, be proxies for the larger debate on so-called hydrofracking -- despite the fact that industry lobbyists sought to assure lawmakers there is little chance oil and gas companies would ever want to drill inside the state capital.

"In a way, it is, and I don't deny that," said Councilman Dominick Calsolaro, the lead sponsor of both ordinances, one of which would amend the zoning code to ban all natural gas extraction in the city, calling it "a significant threat to its residents' health, safety and welfare."

"It can affect us, and we need to send a message," Calsolaro said, adding that he hoped other nearby communities more likely to see drilling that could impact Albany's sole water supply, the Alcove Reservoir in the southwestern part of the county, would follow suit.

The second measure, citing the toxic chemicals used in the drilling process to flush the gas from deep shale deposits, would prohibit the disposal of "natural gas and production wastes" in the Rapp Road landfill.

Industry lobbyists urged the council to wait and called both ordinances essentially academic, noting the city does not sit atop the coveted gas-bearing Marcellus Shale rock and that too little is known about the nearer Utica Shale to speculate on whether it would ever be worth drilling.

"It is not, in my estimation, a real issue," James Carr, of the firm Hinman Straub, which represents the gas industry. "We're talking about events that are not likely to happen in the city of Albany."

Carr also contended that jurisdiction over drilling lies with the state -- meaning the city could be setting itself up to be dragged into litigation over the legality of the proposed ban, which is similar to one adopted in Buffalo in February.

Calsolaro countered that he believed a 1987 opinion from the state Court of Appeals firmly gave local communities the right to control the activity through zoning.

The state Department of Environmental Conservation is currently reviewing proposed rules to regulate the practice and is expected to begin issuing drilling permits as soon as next year. DEC has acknowledged that the fate of the local bans will likely be resolved in court.

Citing the potential for pre-emption by state law, Assistant Corporation Counsel Brad Burns urged the council to wait until the state regulations are finalized. Councilman Michael O'Brien, the committee's chairman, agreed, urging delay at least until the city could research the court decision Calsolaro was citing. The lawmakers ultimately found consensus in discharging the ordinances without positive or negative comment.

Roger Downs, a conservation associate with the Sierra Club's Atlantic Chapter, said the city would be wise to ban drilling waste from its landfill because DEC has taken the position that even though some of the chemicals used in the process are regulated as hazardous, the byproducts are not.

But Thomas Johnson, a hydrogeologist who spoke with the industry representatives, argued that many of the things the landfill already accepts are as toxic, if not worse. Carr also noted the city already has the right to refuse any waste it doesn't want to take.

Guilderland resident Steve Wickham acknowledged that while the main drilling fight is not in Albany, the city could set a highly visible example.

"The reason that these industry people are here," Wickham said, "is primarily to protect their interests in other places."